Sayed Tafiqur Rahman vs Musst. Sumi Begum

Heard Mr. B. Sarmah, learned counsel for the petitioner and Mr. A. Mannaf, learned counsel for the respondent.

This revision petition under Section 397 Cr.P.C. is preferred against the judgment and order, dated 15.06.2011 passed by the learned Judicial

Magistrate, 1st Class, at Rangia in Case No.56M/09 under Section 125 Cr.P.C.

The petitioner’s case, precisely, is that the 1st party/respondent herein filed a petition under Section 125 Cr.P.C. claiming maintenance from the

2nd party/petitioner herein, contending, inter-alia, that their marriage agreement was executed in the office of the Sub-Registrar vide deed No. 261/08

and on the same day at about 7:00 p.m. ‘Nikah’ was performed as per Islamic rituals. Thereafter, the petitioner took her to his relative’s

house at village Balabari and continued their marital relation for about 3 (three) months. During their stay together as husband and wife, the 2nd

party/petitioner subjected her to physical cruelty on demand of dowry and deserted her and since then no maintenance has been paid to her, for which

she is living with her parents. The 1st party/respondent herein claimed that the 2nd party/petitioner is a driver of Road Roller by profession and his

monthly salary income is approximately Rs. 7,000/and apart from that source of income, he has one tractor and cultivable land and thus, his total

monthly income is approximately 15,000/-. Hence, the 1st party/respondent prayed for a monthly maintenance allowance of Rs. 4,000/from the 2nd

party/petitioner herein.

The 2nd party/petitioner herein contested the petition denying, inter-alia, that ‘Nikah’ was performed and that co-habitation had ever taken

place with the 1st party/respondent. The 2nd party/petitioner contended that on 09.11.2008, the 1st  party/respondent, on instigation of her parents

and some villagers entered into his house to compel him to marry her, falsely alleging that she was carrying pregnancy of 1 ½ months from his side,

which she could not prove in the village ’bichar’, but the villagers compelled him to register his marriage with the 1st party/respondent in the

office of the Sub-Registrar at Rangia. Therefore, the 2nd  party/petitioner herein contended that the 1st party/petitioner is not entitled to maintenance

allowance.

In course of the proceeding, the 1st party/petitioner examined 4 witnesses inclusive of her, whereas the 2nd party/petitioner herein examined 3

witnesses inclusive of him. The learned trial court, in view of the rival pleadings took up three points for determination, firstly, whether the 1st

party/respondent is the legally married wife of the 2nd party/petitioner; secondly, whether the 2ndparty/petitioner has refused to maintain the 1st

party/respondent, who is unable to maintain herself and thirdly, whether the 1st party/respondent herein has any just ground to live separately.

Learned trial court answered all the aforesaid points in the affirmative and accordingly, directed the 2nd party/petitioner herein to pay maintenance

allowance @ Rs. 2,000/- only per month, to the 1st party/respondent w.e.f. the date of the order, that is, 05.06.2011.

It is pertinent to be mentioned that the object of Section 125 Cr.P.C. is to save the dependant from destitution and vagrancy. The petitioner must

establish to be a person, under any of the categories mentioned in clauses (a) to (d) of SubSection (1) of Section 125 Cr.P.C. and that the petitioner is

unable to maintain itself and that the opposite party, despite having sufficient means to maintain the petitioner, neglected or refused to maintain.

Mr. B. Sarmah, learned counsel for the petitioner, submits that the 1st party/respondent failed to establish in the proceeding, the validity of the

alleged agreement of marriage, which was a shame document, not followed by cohabitation between the parties, and on the other hand, the learned

court below failed to appreciate that the source of income of the 2nd party/petitioner herein is not established.

Per contra, Mr. A. Mannaf, learned counsel for the 1st party/respondent herein submits that the learned court below, on appreciation of the

evidence of both sides, has delivered the impugned well reasoned judgment and order, taking note of the basic points in dispute and the essential

ingredients making the 1st party/respondent entitle for maintenance from the 2nd party/petitioner herein.

Mr. Mannaf further submits that the 2nd party/petitioner has not paid the maintenance as directed by the learned court below and by this time has

resulted in accumulation of a huge arrear amount.

Perusal of the impugned judgment and order, it appears that Ext. 1 is the deed of marriage agreement, dated 14.11.2008 executed between both the

parties and it was followed by solemnisation of marriage, on the same day night, where P.W. 3 acted as Junab. The evidence of P.W. 1, the 1st

party/respondent herein is corroborated by P.W. 3, Md. Farid Ali, on the point of performing of ‘Nikah’ between the parties, P.W. 2 Md.

Taiyab Ali, the father of the 1st party/respondent herein (P.W.1) and P.W. 4 Md. Haider Ali have corroborated the evidence of P.W. 1 to the effect

that following the marriage agreement, ‘Nikah’ was performed on 14.11.2008, between both the 1st party/respondent and the 2nd

party/petitioner herein. Although D.W. 1 Md. Mujamil Haque , D.W. 2 Md. Jaber Ali and D.W. 3 Md. Tafiqur Rahman (2nd party) denied performing

of Nikah, in cross-examination, however, D.W. 3 admitted that he did not file any case for his forcible execution of marriage agreement deed with the

1st party/respondent herein. It needs to be mentioned that the proof of marital status in a proceeding under Section 125 Cr.P.C., the trial court is

required to take a prima facie view of the matter, without going deep into the matrimonial legal status. The petitioner should establish that they had

lived together as husband and wife which is, of course, a rebuttable presumption. The learned trial court, as it appears from the impugned judgment,

took into consideration of these material aspects of the proceeding, on appreciation of the evidence of both sides and answered the points

aforementioned in the affirmative.

So far the point of source of income of the 2nd party/petitioner herein is concerned, it may be mentioned that the expression ‘means’

occurring in Section 125 Cr.P.C. does not signify only visible means such as immovable property or definite employment. If a man is healthy and able

bodied, he should be held to be possessed of sufficient means. There is no evidence contrary thereto and as much, no fault is found in the impugned

judgment while deciding the second and third points aforementioned.

Consequently, this revisional court is of the opinion that as there is no failure of justice due to any misappreciation of law and facts, in the

impugned judgment and order, no interference is warranted.

Accordingly, the revision stands dismissed.

The 2nd party/petitioner is hereby directed to pay the entire arrear maintenance due to the 1st party/respondent herein, within a period of three

months, from the date of receipt of a copy of this judgment and order, subject to any order by the learned trial court, if found necessary, to be paid in

equal instalments, in addition to regular monthly payment of maintenance.

Forward a copy of this judgment and order to the learned court below.